Americans watched with detached amazement as British voters embraced the blatant lies of pseudo-populists and turned the structure of their nation on its head.
We should not be smug. A “Brexit”-scale event could happen here. Indeed, right now a campaign to call a constitutional convention — with the ostensible purpose of proposing a balanced-budget amendment — is gathering momentum.
Like Brexit, this would risk grave damage to the global economy. It would also drastically reduce America’s standing in world affairs — far more than handing the presidency to an incoherent, shopworn reality TV star.
Article 5 of the Constitution allows for two paths to change the Constitution. The first is for an amendment to be proposed by Congress with a two-thirds majority vote in both the House and Senate and ratified by three-fourths of states. That’s how it’s been done 27 times. But the same article also allows for two-thirds of the states to come together to demand Congress call a constitutional convention to propose amendments.
An effort to call a convention to propose a balanced-budget amendment garnered some attention in the 1970s and early 1980s but fell well short and was abandoned. Now, after a hiatus of 28 years, campaigners have again been peddling constitutional convention resolutions in statehouses.
The effort is spearheaded by a hodgepodge of right-wing advocacy groups, among them the Balanced Budget Amendment Task Force, Citizens for Self-Governance and the American Legislative Exchange Council, the latter being the corporate-funded group that gave us “stand your ground” gun laws. By its proponents’ dubious math, the constitutional convention push is just six states shy of reaching the required two-thirds of the states. They are now targeting seven states with Republican legislatures, and four more with split control, to close that gap.
Even if a balanced-budget amendment were the only item on a convention’s agenda, that would be a disaster. Locking the world’s largest economy into a fiscal straitjacket would preclude any effective response to economic recession, forcing deep cuts in unemployment benefits and other aid at the very moment they are most needed. Suggested provisions that would allow supermajorities in both houses to waive the balance requirement would provide little relief. Consider that this year, neither chamber of Congress could muster a simple majority to pass a budget. If Congress fails to agree upon a balanced budget, who decides on the cuts? The president, acting unilaterally? The courts?
The bigger threat is that a constitutional convention, once unleashed on the nation, would be free to rewrite or scrap any parts of the U.S. Constitution. Do we really want to open up our nation’s core defining values to debate at a time when a serious candidate for the White House brags about his enthusiasm for torture and the surveillance state, wants to “open up” reporters to lawsuits, scoffs at the separation of powers and holds ideas about freedom of religion that are selective at best?
Convention proponents claim that some of this country’s founders intended for constitutional conventions to be limited to a single purpose. But that just sidesteps the critical question: which institution could and would enforce any limits on a rogue convention? The only precedent we have — the convention of 1787 — quickly shredded its mandate to propose modifications to the Articles of Confederation. The specific danger of a runaway convention prompted the late Chief Justice Warren Burger to state his opposition to a constitutional convention in a 1988 letter to conservative activist Phyllis Schlafly.
Today’s proponents of a constitutional convention brazenly assert that they should be able to add together 12 state resolutions passed in recent years to the 16 passed decades ago. That would put them only six states shy of the 34 needed to call a convention. The Constitution gives Congress — acting without the possibility of a presidential veto — authority to call constitutional conventions.
Of course, cobbling together the results of two entirely different periods of state legislative action and resolutions with quite different terms would be a completely unprincipled thing for Congress to do. But then, so is acknowledging that remarks by your party’s presidential candidate are textbook racism but endorsing him anyway.
Depressingly, some progressives who ought to know better are going along with the constitutional convention idea in the far-fetched hope that an amendment might emerge to reverse the Supreme Court’s Citizens United decision that gutted campaign finance laws.
As the November election approaches, liberals and conservatives alike will bombard voters with declarations of love for the Constitution. A good way to demonstrate that love would be to take a stand against this dangerous adventure. All candidates for Congress should be pressed for their stance on a constitutional convention.
The Congress we elect in just four months could well be asked to call a constitutional convention based on purported demands of 34 states. Those who care about this country’s most basic values can no longer ignore this danger.
David Super teaches law at Georgetown University. He wrote this article for the Los Angeles Times.